GRIEVANCE ADMINISTRATOR v. HOLT

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GRIEVANCE ADMINISTRATOR
v. HOLT

GRIEVANCE ADMINISTRATOR, Petitioner/Cross-Appellant,

v

JONATHAN E. HOLT, P-28948Respondent/Appellant

Case Nos. 94-158-GA; 94-174-FA

Decided: January 16, 1998

BOARD OPINION

This matter was commenced with the filing of a
three-count formal complaint, Case 94-158-GA, which charged that
respondent committed acts of professional misconduct warranting
discipline. Respondent failed to timely answer that complaint and
a default was entered. A supplemental complaint for failure to
answer, Case 94-174-FA, was filed and consolidated for hearing. A
default was entered for respondent’s failure to timely answer
that complaint. Both defaults were subsequently set aside by the
panel. On August 28, 1997, the hearing panel filed its report and
order dismissing Counts 2 and 3 of formal complaint 94-158-GA for
the reason that the allegations had not been established by a
preponderance of the evidence. The panel dismissed formal
complaint 94-174-FA based upon its prior ruling setting aside the
default in the original complaint. The panel unanimously
concluded that respondent’s failure to promptly prepare and
process a proposed judgment of divorce and eligible domestic
relations orders on behalf of complainant warranted a suspension
of respondent’s license to practice law for a period of thirty
days.

The respondent filed a petition for review
arguing that the panel’s findings of misconduct are without
proper evidentiary support; that the panel precluded respondent’s
effective examination of certain witnesses as the result of the
witnesses’ assertion of an attorney/client privilege or
doctor/patient privilege; and that the discipline imposed by the
panel is unduly harsh. The Grievance Administrator filed a
cross-petition for review which seeks a determination that
respondent’s failure to file a timely answer to the original
formal complaint constituted professional misconduct. The
Administrator seeks an additional thirty-day suspension for the
failure to file a timely answer.

COMPLAINT 94-158-GA

The Attorney Discipline Board has conducted
review proceedings in accordance with MCR 9.118 and has reviewed
the record below. With regard to the panel’s findings of
misconduct as alleged in Count 1 of formal complaint 94-158-GA,
we conclude that those findings have proper evidentiary support
in the whole record and they should be affirmed. We are not
persuaded that the panel erred in its rulings on the assertion of
a physician/patient privilege with regard to the testimony of Dr.
Sommerschield or the assertion of an attorney/client privilege
with regard to the testimony of complainant’s former husband and
his attorney.

COMPLAINT 94-174-FA

The hearing panel’s decision to set aside the
default for failure to file a timely answer to complaint
94-158-GA was a proper exercise of its discretion. Nevertheless,
MCR 9.104(7) establishes failure to answer a complaint in
conformity with MCR 9.115(D) as misconduct and grounds for
discipline regardless of the entry or setting aside of a default
under the procedural rules which appear in MCR 9.115(D)(2) and
MCR 2.603(D). We addressed this issue in Grievance
Administrator v Mary L Banks, 95-234-GA (ADB 1997):

The hearing panel erred in dismissing
the formal complaint which charged that respondent’s
failure to file a timely answer to the initial complaint,
Case 95-234-GA, constituted professional misconduct in
violation of MCR 9.104(7). Respondent does not claim that
the complaint was improperly served. She acknowledges
receiving the complaint and she admits that she did not
file a timely answer. Her sole explanation to the panel
was that she received a notice from the Board adjourning
the initial hearing date and she thought that this
relieved her of the responsibility to file an answer
within twenty-one days. There is nothing in the
adjournment notice or the rules which create such an
inference. The Board has ruled that the withdrawal of a
default for failure to answer does not preclude a finding
that the failure to file a timely answer nevertheless
constitutes a violation of MCR 9.104(7) and the plan
language of MCR 9.115(D)(1). Grievance Administrator v
Rhonda R Russell, 91-202-GA; 91-235-GA (ADB 1992). As
with the failure to answer the Request for Investigation,
the circumstances surrounding respondent’s failure to
file a timely answer may well constitute a mitigating
factor to be considered by the panel in determining the
appropriate discipline. Those circumstances did not,
however, relieve respondent of the unavoidable duty to
provide a timely answer to the complaint. [Grievance
Admnistrator v Banks, p 6.]

The circumstances in this case are similar.
Respondent concedes that the formal complaint was properly served
and he explained to the panel that he and his staff mistakenly
assumed that an answer was required within twenty-eight days
after service rather than within twenty-one days as required by
MCR 9.115(D). We do not necessarily disagree with the panel’s
conclusion that respondent’s failure to file a timely answer to
the complaint need not result in suspension of respondent’s
license under all of the circumstances. However, in accordance
with the Board’s prior rulings, these circumstances mitigated but
did not exonerate respondent’s failure to file a timely answer.
We therefore reverse the hearing panel’s dismissal of formal
complaint 94-174-FA.

LEVEL OF DISCIPLINE

Taking into account all the factors in this
case, including respondent’s prior unblemished record, the
absence of dishonesty or selfish motives and the absence of
evidence in the record suggesting that respondent’s conduct was
part of a pervasive pattern of neglect on behalf of other
clients, we are not persuaded that suspension of the respondent’s
license is necessary to achieve the proper goals of these
discipline proceedings. Discipline is therefore reduced to a
reprimand.